1. LGBT Immigration Issues
October 9, 2015
LGBT Immigration Issues
Bryon M. Large, Senior Associate Attorney
Kolko & Associates, P.C.
(303)
Bryon M. Large - Kolko & Associates, PC

2. LGBT Immigration Issues
October 9, 2015
What is a “marriage?”
A Marriage is a Marriage
Not a Civil Union
What about Common Law Marriage?
Bryon M. Large - Kolko & Associates, PC

3. LGBT Immigration Issues
October 9, 2015
Bad Law (Pre-Windsor)
Defense of Marriage Act (Section 3 of DOMA) 1 U.S.C. 7
Adams v. Howerton, 673 F.2d 1036 (9th Cir 1982)
9th Circuit case regarding a Colorado marriage
Bryon M. Large - Kolko & Associates, PC

4. LGBT Immigration Issues
October 9, 2015
Bryon M. Large - Kolko & Associates, PC

5. LGBT Immigration Issues
October 9, 2015
Good Law (Post-DOMA)
United States v. Windsor, 570 U.S. __ (2013)
Thea Spyer and Edie Windsor
Bryon M. Large - Kolko & Associates, PC

6. LGBT Immigration Issues
October 9, 2015
Immigration Benefits
Immigrant Visas
Fiancée Benefits
Dependent Children (Step-Children)
Non-Immigrant Benefits
Benefits in Removal Proceedings
Bryon M. Large - Kolko & Associates, PC

7. Documenting Same-Sex relationships
LGBT Immigration Issues
October 9, 2015
Documenting Same-Sex relationships
Special Issues in Documenting Relationships
Lack of Prior Year Tax Returns
Less frequently will have children born to the marital union
“Coming out” issues may mean that there are less people to write affidavits
Less contact with extended family
Employers
Bryon M. Large - Kolko & Associates, PC

8. Special concerns with adjudications
LGBT Immigration Issues
October 9, 2015
Special concerns with adjudications
New area for adjudicators too!
Combating fraud suspicion and allegations
Sham marriages
Past marriages
Bryon M. Large - Kolko & Associates, PC

9. Defensive Benefits – Removal Proceedings
LGBT Immigration Issues
October 9, 2015
Defensive Benefits – Removal Proceedings
Family-based Relief
Benefits for Vulnerable Populations
Humanitarian Defensive Options
Refugees
Asylum
Withholding of Removal
Protection under the Convention Against Torture
Must show that it is more likely than not that the respondent would be tortured upon return to their home country
Bryon M. Large - Kolko & Associates, PC

10. Strategies in Removal Proceedings
LGBT Immigration Issues
October 9, 2015
Strategies in Removal Proceedings
Marriage
Visa Petition for Adjustment of Status or Consular Processing
Cancellation of Removal (INA § 240A(b) relief)
Review how LGBT issue (and possible HIV) affect hardship arguments
Bryon M. Large - Kolko & Associates, PC

11. Benefits for Vulnerable Populations
LGBT Immigration Issues
October 9, 2015
Benefits for Vulnerable Populations
Asylum
Requires a fear of persecution
Special Immigrant Juvenile Status (SIJS)
T Visa
Visa status for victims of human trafficking
U Visa
Visa status for victims of certain crimes
Victim must have cooperated with law enforcement
Law enforcement agency (LEA) or judge must certify that Applicant was a victim and helpful to investigation and prosecution
Violence Against Women Act (“VAWA”)
Bryon M. Large - Kolko & Associates, PC

12. LGBT Immigration Issues
October 9, 2015
Case Law
Bryon M. Large - Kolko & Associates, PC

13. Matter of Acosta 19 I&N Dec. 211 (BIA 1985)
LGBT Immigration Issues
October 9, 2015
Matter of Acosta 19 I&N Dec. 211 (BIA 1985)
Persecution on account of membership in a particular social group refers to persecution that is directed toward an individual who is a member of a group of persons, all of whom share a common, immutable characteristic
A characteristic that is either beyond the power of the individual members of the group to change, or
A characteristic that is so fundamental to their identities or consciences that it ought not be required to be changed
Bryon M. Large - Kolko & Associates, PC

14. Matter of Toboso-Alfonso 20 I&N Dec. 819 (BIA 1990)
LGBT Immigration Issues
October 9, 2015
Matter of Toboso-Alfonso 20 I&N Dec. 819 (BIA 1990)
Homosexual individuals are a member of a particular social group
Certified by Attorney General Janet Reno in 1994
Gay man from Cuba
Immigration Judge found homosexuality to be an immutable characteristic
INS argued that it was “socially deviated behavior”
Bryon M. Large - Kolko & Associates, PC

15. Hernandez Montiel vs. INS 225 F.3d 1084 (9th Cir. 2000)
LGBT Immigration Issues
October 9, 2015
Hernandez Montiel vs. INS 225 F.3d 1084 (9th Cir. 2000)
Gay men with female sexual identities constitute a particular social group
Bryon M. Large - Kolko & Associates, PC

16. Karouni v. Gonzales 399 F.3d 1163 (9th Cir. 2005)
LGBT Immigration Issues
October 9, 2015
Karouni v. Gonzales 399 F.3d 1163 (9th Cir. 2005)
No distinction between homosexual acts and homosexual status
INS essentially argued that it was the acts that caused the persecution
The Court essentially ruled that to require the applicant to cease sexual activity would be to force him “to change a fundamental aspect of his human identity.”
Bryon M. Large - Kolko & Associates, PC

17. Matter of S-E-G- 24 I&N Dec. 579 (BIA 2008)
LGBT Immigration Issues
October 9, 2015
Matter of S-E-G- 24 I&N Dec. 579 (BIA 2008)
Neither Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities nor the family members of such Salvadoran youth constitute a “particular social group.”
Membership in a purported social group requires that the group have particular and well-defined boundaries, and that it possess a recognized level of social visibility
Upheld by the 6ht Circuit in 2009
Bryon M. Large - Kolko & Associates, PC

18. LGBT Immigration Issues
October 9, 2015
Matter of M-E-V-G-; Matter of W-G-R- 26 I&N Dec. 227 (BIA 2014); 26 I&N Dec. 208 (BIA 2014)
Social Visibility does not necessarily mean “ocular” visibility, and is renamed “social distinction”
Requirements for a Particular Social Group:
Share a common and immutable characteristic
Defined with particularity
Socially distinct within the society in question
Bryon M. Large - Kolko & Associates, PC

19. LGBT Immigration Issues
October 9, 2015
Document Issues
Bryon M. Large - Kolko & Associates, PC

20. LGBT Immigration Issues
October 9, 2015
USCIS Policy
Document Issuance for Transgender Individuals
Documents may be issued reflecting post-transition gender
Requirements:
Amended birth certificate, passport, or court order
Medical Certification from a licensed physician
Based on standards and recommendations of the World Professional Association for Transgender Health (WPATH)
Must be an M.D. or a D.O.
Proof of sex reassignment surgery is not required
Name Change
Per state or foreign law
Bryon M. Large - Kolko & Associates, PC